
"b^^ 




.4 o_ 










•<-^^ 

-S^''^^, 






.'<; ^H cv .c, .0 T', ■ • A o^ l^ 






.\\\>,^ 






rT'.- 









Sn:A\i1 










O 



i-*^'' ■•'^fe^'- "'■^■"o^"' ""SM 






.^ -.. 






o 



^' -%. '^m^^' . ^^ 









0^ ''VI'. ^> 










'^-o'^ 






'His 






c^> '".^nv-:5.>;-_\ ..^ '^ 



rO' " O f C^ ' 












A 






■<?> 












^^ 



0^ r^ 



"^ 



,^" .. ^<^^. "^-o- ^v ^- * 



> 







V ^ 



<.,'. '-n.o^ ^.^ 




■*>. n"^ , o K at . 'Vi 






» ' ' * ' ^"^ 










0" , e " " 









'^, 



4- 



il 



o 



4* 






LIFE AND SERVICES 



OF 



EDWARD LIVINGSTON 



ADDRESS OF 

CARLETON HUNT, 

MAY 9, 1903. 

On the Occasion of the Annual Meeting of the Louis- 
iana Bar Association, in the Chamber of the 
Supreme Court of the State of 
Louisiana, New Orleans. 



NEW ORLEANS. LA.: 

J. G. Hanser, "The Legal Printer, " 402 Camp Street. 

1903. 



• L\(o« ry! 



S4»m:e.i 



S ^r'€= 



LIFE AND SERVICES 

OF 

EDWARD LIVINGSTON. 



Address of Carleton Hunt. 



Mr. President, Ladies and GcntloncU: 

A great profession advances itself when it honors its illustrious 
men. It is not easy to think of a more appropriate time than 
ihe present annual meeting of the Bar, to place before the As- 
sociation a narrative of the life and services of Edward Living- 
ston, or a more suitable place for doing so, than this historic 
chamber of the Supreme Court of the State of Louisiana, where, 
in the gallery about us, his bust (taken from the original work 
of art in marble by Ball Hughes, which is at Montgomery Place,) 
now holds a place of honor. The influence of Mr.' Livingston in 
laying the foundations of this State, and of its jurisprudence, 
when he was facile princeps at the Bar of New Orleans, was pow- 
erful. The very recent celebration in this court room of the one 
hundredth anniversary of the Cession of Louisiana by France to 
the United States — a great public transaction which, more than 
that of anyiiod}^ else, was the work of Robert R. Livingston, 
brother of Edward Livingston ; the close neighborhood of this 
ancient building, once the seat of the Spanish Cabildo, to Jack- 
son Square, formerly the Place d' Amies, where Mr. Livingston, 
standing side by side with General Jackson, addressed in tones 
that were never forgotten by those who heard him, the serried 
ranks of the American soldiery, and rallied them in the victori- 
ous campaign of 1814-15 to the support of the flag of their 
country at the battle of New Orleans, are suggestive of asso- 
ciations with his name. Although sixty years have elapsed 
since the close of his career of usefulne-:s and honor in public 
life, his history as it lies before us, is full of interest and instruc- 
tion, and proves him to have been, not only a jurist, the ornament 
of the entire American Bar, but also an enlightened statesman, 
devoted to the cause of our common country, and a philanthropist 



far in advance of the time in which he lived. — in point of fact, the 
Champion of Law Reform in the United States. 

Edward Livingston was born at Clermont, Columbia County, 
Now York, May 20, A. D. 1764. He was descended from an 
ancient and noble family of lowland Scotch. Sir Alexander Liv- 
ingstone, of Calendar (A. D. 1487), was one of the two joint 
regents during the minority of James II. of Scotland. The magic 
pen of Sir Walter Scott has surrounded with the halo of Romance 
the name of his daughter, JMary Livingstone, who was one of the 
"four Marys," maids of honor to the unfortunate Mary, Queen 
of Scots, brought up to be her companions. ]\Iary Living- 
stone shared the imprisonment of Queen ]\Iary in the Castle of 
Lochleven, and, as I find, the perils of the attempted rescue 
of the royal captive. The earldoms of Linlithgow, and Calendar 
and the title of Viscount of Kilsyth were held at different times 
by the Livingstons. 

The grandson of the fifth Lord Livingston, the Reverend John 
Livingston, was a celebrated preacher. He was one of two com- 
missioners to negotiate at Breda, the accession of Charles II. to 
the throne of Scotland. His son, founder of the family of the 
Livingstons of New Yoriv, was born in Scotland, A. D. 1654. He 
was a bold and ambitious man. He married Alida, widow of 
Nicholas Van Rensselaer, born Schuyler, and A. D. 1686, became 
by letters patent duly confirmed first Lord of the Manor of Liv- 
ingston. 

The first Lord divided his ample domain of one hundred and 
sixty thousand aei'es at his death. The upper manor he be- 
queathed to his eldest son, Philip Livingston. He bestowed the 
lower manor of Clermont upon his second son named Robert. 
This second son was a man of learning and of high character, and 
an ardent patriot, who transmitted to those who came after him 
his love of American independence. He died A. D. 1775. He 
was father of Robert R. Livingston, judge of the Supreme Court 
of the Colony of New York, who also died A. D. 1775. As the 
name of Robert was handed down from father to son, the latter 
wrote it Robert R., which stood for Robert Robert. The signifi- 
cancy, or real meaning, belonging to the repetition of the Chris- 
tian name is Robert the son of Robert. Judge Livingston also 



adhered to the patriot cause. He was admitted to a seat in the 
Stamp Act Congress of 1765. He was author of the address to 
the King of England to hold inviolable the rights of the colonies, 
and to preserve sacred the right of trial by jury. Judge Living- 
ston married Margaret, daughter of Colonel Henry Beekman. 
Mrs. Livingston, when offered protection for the family mansion 
at Clermont by the British, declined it rather than accept any 
advantage over her neighbors and countrymen. The house was 
set fire to and burned in consequence. Mrs. Livingston was 
revered by all who knew her, for her virtues and strength of 
character. The family, issue of this marriage, endeared them- 
selves to the people by their devotion to the patriot cause. Robert 
R., and Edward, became illustrious men. Henry Beekman Liv- 
ingston was a Colonel in the Revolutionary Army. Congress 
voted him a sword for gallant services. He wt a dear friend of 
Lafayette. Janet, eldest daughter, married Richard iMontgomery. 
Gertrude became the wife of General jMorgan Lewis. Alida mar- 
ried John Armstrong, Secretary of War, Minister to France, 
Senator of the United States. 

The early life of Edward Livingston, his career at the Bar of 
the City of New York, and his first Congressional service of six 
years as Representative from the State of New York, were passed 
in the time of American Constitutional formation and early 
growth. Burke declared that by the battery of questions which 
the colonists had raised, they had shaken the solid foundations of 
the British Empire. Lord Chatham said to the House of Lords, 
that when they looked at the papers transmitted from America, 
and when they considered their decency and fairness, they could 
not but respect the cause, and wish to make it their own. 

At the age of nine, Edward Livingston lost (A. D. 1775) both 
his father. Judge Livingston, and his brother-in-law, Richard 
IMontgomery. He was witness to the parting of the latter with his 
wife. The scene sank deep into his heart and agitated it strangel}' . 
The fall of jMontgomery before Quebec, the same year, was the 
costly offering of Janet Livingston, and of her family upon the 
altar of their country, and identified them with the Revolution, 
as nothing else could have done. 

A. D. 1779, Edward Livingston became a member of the Junior 
Class, Nassau Hall, Princeton. The college resumed its courses of 



instruction that year after long interruption. He graduated at 
seventeen. Princeton witnessed some of the most stirring scenes 
of the war. Washington, before adjournment in 1776, had been 
invested by Congress with the powers of a Dictator. There 
was no darker time in the course of the great struggle than 
when he retreated across the Jerseys. But he turned at last 
upon his pursuers and earned the appellation of the American 
Fabius. He re-crossed the freezing Delaware and December 26, 
1776, fought the battle of Trenton. He rode in the advance with 
a battery of artillery. He remained with it when it unlimbered. 
He exposed himself freely to danger, and, as his habit was when 
he was aroused and in action, refused all appeals that he should 
fall back. He moved forward with his column to the head oE 
King street, and himself directed the fire of the guns. The battle 
near Princeton took place January 8, 1777. Meeting near Clark's 
house, as he galloped to the front, Mercer's troops in full retreat, 
Washington rallied their broken ranks. Gallantly mounted on a 
white horse, a Conspicuous mark for the enemy, he waved his hat 
on high. He called on his men to follow, and led them, taught by 
his example, through the storm of battle to victory ! He pushed 
on to Princeton. A party of British had taken refuge in the 
college, but after receiving a few discharges from the American 
field pieces they surrendered. Dr. Witherspoon, the President, re- 
turned to Princeton in 1779 to repair the battered college build- 
ings, and by his presence and course in public life as a devoted sup- 
porter of the Revolution, to connnunicate his own enthusiasm to 
the students under his charge.* The fortitude, the wisdom, the 
consummate generalship of Washington, and his lion-hearted cour- 
age having had full opportunity for display, had come to act as an 
inspiration on his countrymen, and indicated already that he was 
to be celebrated as the noblest figure that ever stood in the fore- 
front of a nations history. The scenes of his exploits were elo- 
quent testimony to the young who lived in daily contact with 
them. Edward Livingston was repeatedly admitted to his pres- 
ence and was kindly noticed by him. 

Lafayette was very early in showing his fondness for young 
Edward Livingston, and constantly drew him to his side in inti- 
mate and congenial companionshii). The latter had always before 



Irviug 's Washington. 



him the instruction and fraternal counsel of his brother Robert R. 
Liviuii'ston. The last mentioned reached the undying honor of 
membership upon the committee which reported the Declaration 
of Independence. He was first Secretary of State under the Rev- 
olutionary Government of the United States, and had frequent 
access to Washington. It was the fortune of Robert R. Living- 
ston afterwards, as Chancellor of the State of New York, to 
administer the oath of office to Washington on his inauguration 
as first President of the United States. It fell to him, ]\Ionroe 
acting towards the close as his as-ociate, to conduct to successful 
issue with the French Government the negotiations for the cession 
of Louisiana to the United States. To Chancellor Livingston the 
great distinction also belongs, of having been Coadjutor with 
Fulton in the enterprise of navigation by steam. Who can 
measure the infiuence of such a character, upon that of a younger 
and of a very loving brother like Edward Livingston ? 

After graduating at Princeton, Edward Livingston began to 
study law at Albany, in the office of John Lansing who was after- 
wards Chancellor. Kent, Hamilton and Burr Avere among his 
associates of this time. There is no tie more lasting than that 
Ijetween fellow students who are in earne-t about improving. 
Kent, in particular, formed a friendship for Livingston which 
followed him everywhere, and found expression in sincere tributes 
to his abilities. The latter was fond of the Latin tongue 
and cultivated familiarity with it. He made himself acquainted 
with the Institutes and Pandects of Justinian, and thus laid 
broad and deep the foundations of his subsequent distinction as 
a great civilian. In 1783 he went to reside in the City of New 
York, where he continued his legal studies, and, although he 
mixed freely in the best society, as was quite natural in a young 
man of his family position, at the same time engaged actively in 
the practice of his profession, and readily reached the front rank 
at the Bar when the contest for leadership was eager in the con- 
spicuous field he had selected, and was carried on by an array of 
veiy able rivals. He was married April 10, 1788, to Mary, 
daughter of Charles McEvers of New York City. Three children 
were the issue of this marriage. Charles Edward, who died in 
childhood, Julia, whose afflicting death in New York while her 



G 



lather was on liis wny from New Orleans to visit her, laid him 
prostrate, and Lewis Livingston, who realizin<r a most precocious 
youth, died in the tiower of early manhood, blessed in his father's 
love and honored by his friendship. 

In December, 1794, Mr. Livingston was elected to the Fourth 
Congress from the City of New York. He was re-elected in 1796 
and in 1798. He served in the House of Kej^resentatives with 
Fisher Ames, Theodore Sedgwick, William B. Ciles, James Madi- 
son and Andrew -lacksoji. Between Jackson and himself there fol- 
lowed an unbroken friendship of many years. He entered public 
life as a member of Ihe Republican party of the day. He followed, 
altliough ncvt'i- l)]iiidly. on the i)a1h\vay where the victorious ban- 
ner of ^Ir. JeiTerson was so often in the lead. On taking his seat 
as a Representative he promptly avowed the opinion that the 
cabinet officers of Washinglon were not entitled to the same 
measure of support and of praise with the President. Vriien the 
House, according to the custom, was to make its answer to the 
President's speech at the opening of Congress, Mr. Livingston was 
in favor of qualifying the address in reply, because it indulged, 
as he thought, in commendation which did not distinguish suffi- 
ciently between the President and his advisers. This appears to 
have ha])iK'ned twice. On the second occasion, Edward Living- 
ston and Andrew Jackson both voted against the address in the 
form in which it was finally' adopted. 

Very shortly after he first appeared in the House, ]\Ir. Living- 
ston introduced a resolution calling for the instructions of Min- 
ister Jay in negotiating the treaty of 1794 with the Knig of 
Great Britain, together with the correspondence and other docu- 
ments relating to it, and soon after the mover amended the resolu- 
tion so as to have it read "excepting such of the papers as any 
existing negotiation may render it improper to disclose." The 
occasion for offering these resolutions was the call made on the 
House to appropriate the sum of $90,000 required to carry the 
treaty into etlect. ^Marshall says, that the debate soon glided into 
an animated vehement and argumentative discussion in which all 
the passions of party became involved, and that it was contin- 
ued until March 24, 1795, when Mr. Livingston's resolution was 
adopted by a vote of sixty-two to thirty-seven. 



After due consideration the President determined to decline the 
request of the House. According to his memorable message, to 
admit the demand would have been to establish a dangerous pre- 
cedent. The necessity'' for caution and secrecy was a cogent 
reason for vesting the power to make treaties in the President by 
and with the advice and consent of two-thirds of the senators 
present, and every treaty so made becomes the supreme law of 
the land. The best reason, according to the message of the 
President, existed for believing that this construction agrees with 
the opinions of the framers of the Constitution, and if it were 
necessary to add to them, reference to the journals of the con- 
vention would show that a proposition was made 'that no treaty 
should be binding on the United States which was not ratified by 
a law, ' and that the proposition was explicitly rejected. After a 
reference of the message to a committee, on motion of Mr. Blount, 
of North Carolina, it was resolved by the House, 57 to 35, that 
whenever treaties are involved on subjects committed by the Con- 
stitution to Congress, the House has a right to deliberate on the 
expediency of carrying them into effect, without deciding what 
degree of obligation the treaty possesses on the Nation, so far as 
respects these poiut'^, previous to such deliberation. 

Washington declared, that he had never seen a crisis so preg- 
nant with interesting events as that which took place on the occa- 
sion of the public announcement of the treaty of 1794 of Jay. 
He had, while Minister to Spain, been willing to suspend the 
claim of the United States to the free navigation of the Missis- 
sippi. No progress had been made down to the treaty of 1794 
with Great Britain, in settling the vexed questions in dispute 
with that power. The text of the treaty gave rise to insupeiable 
objections where it prohibited the productions of .the British 
West Indies from being carried in vessels of the United States to 
Europe ; in other words for])id exportation from the United 
States of articles which were the principal productions of the 
islands in question. Among these w^as cotton, which was becom- 
ing one of the principal staples of the Southern States. To 
further complicate the situation an immense party in the country 
rushed impetuously to the condemnation of the treaty.* 



* Marshall 's Washington. 



In the jndsrnient of Washington, who remained undismayed in 
the midst of the storm which raged around him, the advantages 
of the treaty overbalanced its disadvantages, however great. It 
was ultimately ratified, but on condition of suspending that part 
relating to intercourse with the West Indies. A strong memorial 
accompanied the ratification against the order enacted of 8th 
of June, 1793, of Great Britain for the seizure of provisions going 
to French ports. Great Britain acquiesced, the order was 
revoked, and the ratifications of the treaty were exchanged. 

Mr. Livingston, in February, 1796, introduced and finally 
secured the passage of the Act of May 28, 1796, for the protection 
of American seamen, who had been impressed into the service of- 
foreign powers, but especially into that of Great Britain. He 
earned national reputation from his opposition to the Alien and 
Sedition Laws. The Alien Act of June 25, 1798. gave the Presi- 
dent power to order all such aliens as he deemed dangerous or had 
reasonable grounds to suspect of treasonable intentions to leave 
the United States. The second Alien Act of July 6, authorized the 
President on the brealdng out of war, to enforce the apprehension, 
restraint and removal of alien enemies. The covirts were empow- 
ered to enforce such removal or exact security for good conduct. 
The Sedition Act of July 14, 1798, made it a high misdemeanor 
to coml)ine to oppose measures of the United States or to traduce 
or defame the Legislature or the President by declarations tend- 
ing to criminate the motives of either. 

Mr. Livingston unhesitatingly pronounced these Acts uncon- 
stitutional. He declared that the people ought not to submit to 
them. They would deserve the chains which thee measures were 
forging for them, if they did not resirst. (3ne of the first results 
of such laws, as he insisted, would be disafifection among the 
States, and opposition among the people to the government, 
tumults, violations, and a recurrence to first revolutionary prin- 
ciples. If the laws in question were submitted to, the conse- 
quences would he worse. After such manifest violation of the 
principles of our Constitution the form would not long be sacred ; 
presently every vestige of it would be lost and swallowed up in the 
gulf of despotism. The system of espionage thus established, the 
country would swarm with informers, spies, delators — the com- 



9 



panion whom you must trust, the friend in whom you must con- 
fide, the domestic who waits in your chamber, were all tempted to 
betray your imprudence and guardless folly, to misrepresent your 
words, to convey them, distorted by calumny, to the tribunal 
where, as he said, Jealousy would preside, where Fear would 
officiate as accuser, and where Suspicion would be the only evi- 
dence that is heard. 

The case of Thomas Nash, alias Jonathan Robbins, was brought 
before the Sixth Congress, A. D. 1799. ]\Ir. Livingston offered a 
series of resolutions relative to this case, and spoke upon it. 
Nash having committed a murder on a British frigate on the high 
seas, and having escaped to this countiy, the British government 
demanded his extradition under the 27th section of Jay's Treaty. 
President Adams advised and requested the Judge to deliver up 
the prisoner. The resolutions of Mr. Livingston were to the 
effect, that the questions involved were matters exclusivel>' (,f 
judicial inquiry, and that the interference of the President was 
dangerous to the independence of the judiciary. 

These resolutions were the occasion for the celelirated speech 
(on the other side of the case) by John ^larshall. Starting with 
the proposition that an offence committed on board of a public 
ship of war, on the high seas, is committed within the jurisdiction 
of the nation to whom the ship belongs, he maintained that it was 
the duty of the Executive Department of the Government to see 
to the surrender of the prisoner in conformity with the treaty of 
1794. In accordance with this view, the resolutions of Mr. Liv- 
ingston were defeated by a vote of thirty-five to sixty-one. Nash 
was given up, and upon being tried in England, executed there. 
The speech of Marshall raised him at once to the leadership of the 
Administration party in the House, and by its . extraordinary 
power attained for him the highest reputation throughout the 
country. 

In the same Congress, Mr. Livingston moved for a committee 
to enquire and report whether any alterations could be made 
in the penal laws of the United States, by substituting milder 
punishments for certain crimes for which infamous and capital 
punishments were then inflicted. The committee was appointed 
and he was made chairman. Shortly afterwards he offered a 



10 



second resolution, requesting the President to obtain for the 
information of Congress, detailed statements respecting the trials 
and convictions which had taken place under existing laws, and 
a year later ]\Ir. Livingston moved for and obtained the appoint- 
ment of a committee, of which he was made chairman, to report 
whether any and what alterations were necessary in the penal 
laws of the United States, and to report by bill or otherwise. 

Mr. Livingston retired from Congress with the contest for the 
Presidency between Jefferson and Burr. There were thirty-Ovo 
ballots without any election. On the thirty-sixth, Mr Jefferson 
was declared to have been elected President of the United States. 
Mr. Livingston adhered to him steadily throughout the balloting. 
The vote of New York stood six for Jefferson, four for Burr. The 
change of one vote would have made a tie and have lost Jefff^rson 
the vote of the State, if not the election. The fact is that Liv- 
ingston not only declined to give Burr his support in any event, 
but kept up throughout the great struggle relations of the most 
confidential character with Mr. Jefferson. 

March 13, 1801, Mrs. Livingston died. There is a record of the 
event made by Mr. Livingston. It had pleased heaven to dissolve 
a union which for thirteen years had been blessed with its own 
harmony — with uninterrupted felicity rarely to be met with. 
Formed by mutual inclination in the spring of life, it was 
cemented by mutual esteem in its progress and was terminated by 
a stroke as sudden as it was afflictive. Three or four days later 
Mr. Livingston was appointed United States Attorney for the 
District of New York, and on the 24th day of August ensuing, 
upon the removal from office of Richard Varick, he wa ; installed 
^rayor of the City of New York. He was now thirty-seven years 
old. 

The Mayor at the time, in addition to his multifarious duties 
as Chief Magistrate, was required to preside over a high court 
exercising both criminal and civil jurisdiction. He sat on the 
trial of capital cases. 'It was his part also to preside ovt-r the 
Common Council, and according to the custom of the day, to 
receive distinguished strangers. Mr. Livingston's qualifications 
for the place were very eminent, and he applied himself to the 
performance of the functions of office with utmost diligence. His 



11 



charges to juries were received with great public favor. He 
reformed the rules and practice of the court in civil actions, and 
published a volume of reports entitled Judicial Opinions, deliv- 
ered in the Mayor's Court of the City of New York in the year 
1802. He proposed to the Mechanics' Society to found jointly 
with the city an establishment for the employment of strangers, 
the first month of their arrival, secondly of citizens who from 
sickness and casualty were out of work, third of widows and 
children incapable of labor, fourth of discharged convicts. The 
benevolence of his nature made him dwell with enthusiasm upon 
the results, in the suppression of mendicity, the prevention of 
crime, and the reformation of criminals, for which he hoped, if 
the measures urged by him were adopted. 

The summer of 1803 brought with it yellow fever to New York. 
The people were panic-stricken, but the Mayor, undismayed, 
remained steadfast at his post of duty. He made a list of the 
sick, and visited them daily at their homes and in the hospitals, 
and ascertained and supplied their wants. He traversed the town 
day and night. He went everywhere, and stimulated to duty 
priests, doctors and nurses, and the watchmen on guard. At last 
he succumbed to the pestilence, contracted in his visits of conso- 
lation and mercy to suft'erers among the poor. Recovering after 
a short but violent attack of fever, he found himself the beloved 
object of public gratitude. 

The greatest misfortune of his life — and he met with some 
cruel ones — now befell Mr. Livingston. While the yellow fever 
was raging, in the month of August, his attention was called to 
his accounts as United States Attorney (charged at that time 
with the collection of funds recovered in litigation for the govern- 
ment) as showing that he had become indebted to the govern- 
ment in a considerable amount. CTCorge Bancroft, historian of 
the United States, relates that upon his recovery from illness, 
he found that he had been defrauded by a clerk, and that he was 
a debtor to the government beyond his means of immediate pay- 
ment. Without a word of complaint, crimination or excuse, he at 
once devoted his inheritance, his acquisitions, the fruit of his pro- 
fessional industry, to the discharge of his obligation to the gov- 
ernment, and for near a score of years gave himself no rest, till 



12 



he had paid it, principal and interest, without defalcation. With- 
out waiting for an adjustment of his accounts, he proceeded to 
confess judgment in favor of the United States, conveyed his 
property to a trustee for sale and an application of the proceeds 
to the payment of his debt, and resigned both his offices. Leaving 
his children in the care of his brother, John R. Livingston, and 
being provided with only one hundred dollars, and a letter of 
credit for one thousand more, he embarked during tlie last woel-; 
in Deceml^er, two months after withdrawing fi'om the Mayoralty 
of New York, as a passenger on board a vessel bound for New 
Orleans. 

Governor Clinton wrote to him to express his sincere regrets, as 
well from considerations of a personal as of a public nature, for 
his resignation of the highly important office he held, and which 
he was so eminently qualified to fill. A committee of the Common 
Council sent him an address. They said they would merit the 
reproaches of their fellow-citizens and fail in duty to themselves 
if they passed over in silence, the affecting moment which termi- 
nated his administration as first nuigi.strate of the City of New 
York. They praised the learning and discernment of his judicial 
decisions — his vigilance, activity and zeal as an executive officer, 
his impartiality and independence. They expressed admiration 
for the zeal and philanthropy with which amidst the affliction and 
dismay of the epidemic he had sought out and relieved distress, 
and sacrificed his personal safety to that of the suffering poor. 
They declared that they would be destitute of the feelings of men 
if they could part with him without regret. They thanked heaven 
1 jr having spared his life. They said that he had erected in the 
breasts of the virtuous a monument which calumny could not 
oully nor time efface. They added that their attachment to his 
person would endure with the recollection of his virtues, and that 
he would take with him their lasting esteem, and their prayers for 
his prosperity and happiness. 

I bring my narrative to a close in the present immediate 
connection, by referring to the statement of Mr. Livingston him- 
self some time before he was enabled to discharge his debt to the 
government, and made in the celebrated Batture controversy in 
wdiich he became involved with Mr. Jefferson, Mr. Livingston 
said : 



13 



"It is time that I should speak. Silence now would be cruelty 
"to my children, injustice to my creditors, treachery to my own 
"fame. The consciousness of a serious imprudence, which cre- 
"ated the debt I owe the pul^lic, I confess it with humility and 
"regret, has rendered me perhaps too desirous of avoiding public 
"observation — an imprudence which, if nothing can excuse, may 
"at least be accounted for by the confidence I placed in an agent 
"who received and appropriated a very large proportion of the 
"sum, and the moral certainty I had of being able to answer any 
"call for the residue whenever it should be made. Perhaps, too, 
"it may be atoned for in some degree by the mortification of 
"exile, by my constant and laborious exertions to satisfy the 
"claims of justice, by the keen disappointment attending this 
* ' deadly blow" to the hopes I had encouraged of pouring into the 
"public treasury the fruits of my labor, and above ali by the 
"humiliation of this public avowal." 

Mr. Livingston on arriving in New Orleans in Deceml)er. IS04, 
found a town of 8056 inhabitants, including 1335 free persons of 
color and 2773 slaves. He rose immediately to the leadership r.t 
the bar. His life passed now into another period of American his- 
tory, which may be designated as that in which Republican Rep- 
resentative Institutions showed themselves capalile of indefinite 
expansion, and the State of Louisiana, under the protection of 
the Constitution and laws of the United States, was founded and 
developed. 

By the treaty of Ildefonso of October 1, 1800, Spain entered 
into a conditional agreement to cede the colony of Louisiana to 
France, and the retrocession took place by treaty March 21, 1801. 
The French made preparations to take possession of the colony, 
but an army of twenty thousand men designed for the purpose 
were blockaded in the ports of Holland by an English squadron. 
The American government took just advantage of the condition 
of affairs to urge upon France the expediency of selling the 
province. There is an authoritative statement by Edward Living- 
ston relative to the negotiations. Robert R. Livingston, the Ameri- 
can Minister to France, enjoyed an established reputation for 
honor and integrity, and celebrity as a man of literature and 
science. He foresaw the advantage that must result to his own 



14 

country from the acquisition of Louisiana, and felt honest pride 
in being instrumental in promoting it. He paved the way for thi? 
important purchase liy official notes, indirect communications, and 
printed essays ; and leaving the beaten track of official notes to 
ministers, resolved on a bold and unusual measure, and addressed 
Napoleon himself. The little value of Louisiana to France was 
insisted on, the question that would arise with the United States 
relative to the navigation of the Mississippi, and the right of 
deposit secured to us by Spain as well as the certainty of con- 
quest if the war should be renewed with Great Britain. The 
result proved a great success. Mr. ]\Ionroe arrived in Paris in 
time to co-operate with Robert R. Livingstoi- hi fixing the price, 
and by the treaty concluded at Paris on the 'i>oLh of April, 1803, 
the First Consul ceded in the name of the French Republic, for 
the sum of $15,000,000, for ever and in full sovereignty, the 
province of Louisiana to the United States. The possession of the 
French under the treaty lasted only from November 30 to Decem- 
ber 20, 1803. On the date last named, Judge Martin's history 
relates, that the tri-colored flag of France was displayed at sunrise 
on the public square which faces this building in New Orleans for 
the last time. It made room, in token of the transfer, for the 
Stars and Stripes, under repeated peals of artillery and musketry. 

The territory thus acquired included at least Louisiana, Arkan- 
sas, IMissouri, Iowa, the Indian Territory, Oklahoma, Nebraska, 
North Dakota, South Dakota, the greater portion of Minnesota, 
Moiltana, Colorado, Wyoming and Kansas. The province of 
Louisiana extended to the Rocky Mountains. Florida was ac- 
quired from Spain in 1819. West Florida had been occupied by 
the United States, as part of the Louisiana purchase, and also on 
the principle of self-preservation. The Oregon territory (occu- 
pied b}^ the United States and claimed as part of the Louisiana 
purchase, and later (1818 — 1846) held in joint occupancy with 
Great Britain) was afterwards (1846), by treaty with Great 
Britain, recognized to belong to the United States, and included 
the States of Oregon, Washington and Idaho. 

The territory here designated includes a great part of the 
Granary of the World, feeding much of the United States and 
supplying the deficiencies of Europe and Asia. From reference 



15 



to statistics, the development of wealth and power which has 
resulted is said to be without parallel in the annals of the human 
race. In 1790 the population of the United States is set down 
at 3,819,876. In 1900 the population of the Louisiana pur- 
chase amounted to 14,708,616. The production of wheat that year 
was 263,560,935 bushels. The production of corn was 1,011,932,967 
bushels. The production of oats was 70,367,489 bushels. Farm 
animals W'Cre valued at $825,000,000. Colorado alone has pro- 
duced since her mines have begun to ])e worked $16,000,000 
copper, $308,000,000 gold, $372,000,000 silver, $116,000,000 lead. 
Montana in four metals produced in less than forty years more 
than $1,000,000,000.* The Bureau of Statistics of the Govern- 
ment estimates that the Louisiana purchase territory is about the 
size of Great Britain and Ireland, Holland. Belgium. (lermany, 
France and Spain, which countries have an aggregate population 
of 200,000,000. 

Only a very imperfect conception of the true value of the 
Louisiana territory is to be formed from figures even such as are 
here given. When the bold genius and character of the people 
who inhabit this vast region is taken into consideration, and the 
effect public education is destined, in the course of time, to have 
upon them — their probable growth not only in numbers, but in 
morality and religion, and in obedience to the cause of law and 
order — in industry and invention — in commerce and internal im- 
provements — in letters and science — in devotion to American in- 
stitutions, and in enlightened love of country— no one is to be 
found confident enough of prophetic power to foretell their 
influence upon the Republic. There is not at the present day, 
one hundred years after the purchase, treasure enough among 
the nations of the earth to buy this territory, nor could the com- 
bined armies and navies of the world wrest it by conquest from 
the United States ! 

Mr. Livingston, when he came to New Orleans, found the Civil 
Law of Spain in force there as derived from the Roman jurispru- 
dence. The sweetness of his temper, and his very simple and 
unatfected address, made it easy for him to extend his acquaint- 
ance, and, his reputation for talents spreading rapidly, he ac- 



'The World's Work, May, 1903. 



16 



quired from the beginning: a large practice. He was an aceora-- 
plished linguist in French, Spanish and German. 

In N()veml)er fi)llowing his arrival, he was mainly instrumental 
in obtaining a decision l)y which the Roman Civil Law was 
retained as the foundation of the local jurisprudence. The organic 
law provided for the aihninistration of justice accoydiiHj to tlie 
Common Law, such being the provision of the ordinance of 1787 
of Nathan Dane for the government of the iiorthwest territory. 
The legislation of Congress estalilishing a government for the 
territory of Orleans, adopted the provision of the ordinance of 1787 
by reference. The Act of Congress declared that the inhabitants 
of the territory shall always be entitled to the benefits of the writ 
of Jiahcds corpus, and of the trial by jury, but also provided that 
the law in foi'ce in the territory and not inconsistent with its pro- 
visions, should continue in force until modified or repealed by the 
Legislature. 

The first attempt to ol)tain a decision hy which the Common 
Law of England should be pronounced to be the law of Louisiana, 
was nuide when Judge John B. Prevost was Judge of the Superior 
Court of the territory. An array of counsel, English, Scotch and 
Irish, contended that the Act of Congress in question provided 
totidem, verbis for the Conunon Law of England. They had no 
other ground to stand upon. Edward Livingston, Louis Moreau 
Lislet, Pierre Derbigny and Etienne Mazureau appeared on the 
other side. Mr. Mazureau testifies that the attack was a formid- 
able one. The adversary side did their utmost. But when Living- 
ston spoke he demolished tlieir argument, and it crumbled to its 
base. The opinion of the court swept away the debris and dis- 
persed them. The coui't held that the law in force being Roman 
and Spanish and French, it results that the term Common Law 
when applied to the territoiy nnist be equivalent to the Common 
Law of that Land, or the Civil Law of the Land. 

^Mazureau wrote to Mr. Livingston the day after he heard the 
latter speak. He congratulated him on the skill and rare elo- 
quence he had displayed. He characterized his effort as a pro- 
found discourse from beginning to end, and he declared that in 
the peroration Livingston had been great, sublime, astonishing. 
"Happy," (he exclaimed) "are the people whose interests are 
defended by a man like vou !" 



17 



The second attempt in favor of the Common Law of England 
was made after the resignation of Jndge Prevost and after Jndge 
Sprigg had gone away, and Judge ]\Iatthews, in obedience to 
existing law, sat alone. The second effort would not have been 
made, in all probability, if the decision given in the first case as 
just related, had bi?en copied upon the minutes of the court. This 
surprising omission, according to Mv. Mazureau, was the sole 
cause for the fresh assault made by the enemies of the law of 
Louisiana upon the jurisprudence of the country. It failed, how- 
ever, signally. It proved as little creditable to those who made it, 
and as little profitable as their original endeavor. 

The observation of Chief Justice Eustis, in the Succession of 
Franklin, 7 Ann. 395, is one well deserving of being recalled. The 
Chief Justice says, that the most eminent members of the bar 
conversant with the Common Law of England did not favor its 
introduction into Louisiana as a system. The Supreme Court, in 
Reynolds vs. Swain, 13 La. R. 198, treating Article 3251 of the 
Civil Code of 1825, and the famous sweeping clause. Section 25 
of Article 83 of 1828, decided, that the repeal of the Roman, 
Spanish and French Civil Laws in the Article cited, and in the 
repealing clause referred to of the Act of 1828, only embraced the 
positive, written or statute laws of those nations and of this State, 
such as were introductory of a new rule, and did not abrogate the 
established principles of law, settled by the decisions of courts ol 
justice. The repeal spoken of in the Code, and the Act of 1828, 
could not, according to the court, extend beyond the laws which 
the Legislature itself had enacted; for it is these alone whicl' it 
could repeal. 

The course of Mv. Livingston in leading the way for securing 
to the people of Louisiana the jurisprudence to which they had 
been accustomed, followed the principles of public law and the 
practice of nations. It contributed powerfully to make the past 
history of the people fit harmoniously with the future, into which 
events were bearing them, and by assuring them the institutions to 
which they were accustomed, gave them proof of the justice and 
liberality of American policy. It is not difficult to see v.hat advan- 
tages the State of Louisiana inherited at once in th*' possession of 
so perfect a system as that of the Roman Law. The studv of this 



18 i 

great branch of jurispruJ'^nee in onr country derive,] a strong im- | 
pulse from the admission into the Union of a new State, the basis | 
of whose jurisprudence was the Civil Law. Discussions in cases of ^ 
importance in the Supreme Court of Louisiana, in the Supreme 
Court of the United States, and in juristical commentary, shed a 
flood of light upon legal science. In the end, the cause of general 
learning itself was advanced. 

The second year of Mr. Livingston's residence in New Origans , 
he recommended the siiiiplifieation of the Practice, and prepared : 
a new system of legal procedure, which was adopted April 10, : 
1805. It substituted a simple system for the prevailing ore. It ' 
was based on the plan of recjuiring each party to state in intelli- ' 
gible language the cause of complaint and the grounds of de- 
fence. His Act included twenty-two sections. Writing about it ' 
twenty-five years later to Jeremy Bentham, Mr. Livingston , 
claimed, although from its novelty, many questions might arise . 
under it before the court and suitors would become accustomed 
to its provisions, that the Louisiana law books from 1808 to 1823 '< 
contained fewer cases depending upon disputed points of prac- 
tice, than occurred in the single year of 1803 in New York, where 
they proceeded according to the English law. He told a young 
gentleman newly arrived from a Connnon Law State, who ex- ; 
pressed much solicitude concerning the time it would take him to : 
learn the practice in Louisiana, and who was engaged to dine ' 
with him at four o'clock the next day, that he thought he could • 
initiate him in all the mysteries of practice before they sat down 
to dinner. It is undeniable that i\Ir. Livingston's Act gave great ; 
satisfaction, and I find it spoken of in a recent paper of the , 
American Bar Association in terms of high professional praise. 

June 3, 1805, Mr. Livingston was married at the Archbishopric | 
in New Orleans to Madame Louise Moreau de Lassy, (born i 
D'Avezac de Castera,*) a beautiful and accomplished lady of rare i 
mental endowments and of many virtues. She was descended i 
from a distinguished French family that had settled in the 
island of St. Domingo, and fled from there to escape the massacre 
which attended the uprising of slaves in the revolution. Once 
more ]\Ir. Livingston had a home, but, although he enjoyed domes- 
tic felicity again, he was beset by dangers and difficulties. 



*The American branch of the tamily spelt and called their name Davezac. 



19 

General James Wilkinson Avas commander-in-cliief of the Army 
of the United States. He had recently returned to New Orleans 
from a visit to Washington. Mr. Livingston believed himself to 
be on good terms with him. The General caused the arrest or a 
certain Dr. Bollman, and of two other persons for alleged trea- 
sonable practices connected with their asserted intimate associa- 
tion with Burr. Mr. Alexander, a member of the New Orleans 
bar, having made application on behalf of these persons for a 
writ of habeas corpus, retained Mr. Livingston as associate coun- 
sel. General Wilkinson appeared in the Superior Court of the 
territory, Judge George Matthews presiding, to show cause why 
the prisoners had been arrested ; and being citizens, under the 
protection of the laws, by what authority their persons were 
detained. The General came into court in the full uniform of his 
high rank, attended by a brilliant staff armed and equipped like 
himself. He made his statement, asked that Alexander be sent for 
and placed under arrest, and then proceeded to denounce Living- 
ston by name. Mr. Mazureau was an eye-witness of the scene. I 
refer to his statement of it. General Wilkinson, in reply to the 
mandate of the court, made an address, in which his title of 
General-in-Chief of this military division was frequently repeated 
with significant emphasis. His speech concluded with the avowal 
that the accused had been arrested solely by the order of the 
General, and that he assumed the responsibility for their deten- 
tion. The court having replied, with judicial calmness and dig- 
nity, that such a return to the writ was quite insufficient to sat- 
isfy the requirements of the law, the respondent, to complete his 
arbitrary conduct, insisted upon his clearly indefensible position 
with disdainful defiance. Accordingly the court soon resounded 
with his menace and invective, directed not against the Judges 
but against the counsel who had presumed to invoke in behalf of 
the prisoners the protecting writ of the law. In order to make 
perfect the triumph of the sword over the law, he added, in a 
burst of passion, that he would deal with counsel for the prisoners, 
and whomsoever dared to support them, without regard to place 
or to the position they might hold in the country. 

Mazureau 's account is that Edward Livingston, thus attacked, 
and with such temerity in the sanctuary of justice, displayed in 



20 



their full vio'or as well as in all their splendor, his talents of ora- 
tory. Gen. Wilkinson, confident of triumph, had no sooner paused 
than Livin<i-ston in turn rose with the simplicity which was so 
charmin<j;- a feature of his address, and after modestly thanking 
the Judges for the sympathy they seemed prepared to extend to 
his situation, he proceeded to improvise one of those discourses 
worthy of the Roman consul when he confounded Catiline, — 
discourses which taking possession of the listeners fill them with 
overpowering emotions — electrify, subdue and transport them, 
falling upon them like a thunderbolt, and scarcely leaving them 
the faculty to discern, that it is only a man who speaks and not a 
divinity who fulmines over the scene. Justice was for the time 
being ])afifled. The prisoners were not produced, because, as was 
stated, they had been removed from the jurisdiction of the court. 
They were carried to Washington, where nothing was proved 
against them. Alexander was seized and hurried off with the 
rest, but the triumph of Livingston was in the end complete. He 
had defied the military power; and from that time arrests by 
military orders ceased and the empire of law was restored. 

When at a later time ]\Ir. Livingston left New Orleans to take 
service in high public station under the government of the United 
States, Mr. Mazureau succeeded to the leadership of the New 
Orleans bar. He was a man of truly great abilities. A native of 
France, he had tied the despotism of the greatest captain of 
modern times, in search of Civil Liberty, which he declared to be 
the idol of his heart. In the wielding of satirical and sarcastic 
invective he has had no equal in the history of the Bar of the State. 
His address in (juestion is upon the life and character of George 
]\Iatthews. It contains, in addition to a tribute to the virtues and 
learning of Judge Matthews, as an excellent magistrate,. a care- 
fully considered account of the character of the population of 
Louisiana and of the ])eginning of its civilization, with an exami- 
nation into the institutions of the territory, and of its early juris- 
prudence. For mastery of difficult topics, and for lucid exposi- 
tion of them— for knowledge of law and practice— for attachment 
to free principles of government — for elevation of sentiment, and 
for true dignity and eloquence, I do not hesitate to claim that it 
will bear comparison with the best efforts of ancient or of modern 
oratory. 



21 



Not long' after settling in New Orleans, ]\Ir. Livingston became 
involved in the celebrated Batture controversy, the principal 
question in which was, whether or not the owner of a riparian 
estate front to the Mississippi river, acquires the batture which 
may thereafter arise before the estate, or in other words whether 
or not the batture so situated is subject to private owner>-^hip ? 

The faubourg St. Mary or Ste. Marie, from which the Batture 
Ste. ]\Iarie gets its name, extended from Common to Delord 
streets above, and embraced the front and public space between 
New Levee street and the Mississippi river. The Jesuits, early 
in the eighteenth century, became possessed of some lands on the 
]\Iississippi adjacent to New Orleans. The order of Jesuits was 
abolished by France in 1763 just before the cession of the prov- 
ince of Orleans to Spain, and the property of the order was for- 
feited. Under an edict of confiscation the land referred to was 
sold and came into the possession of Bertrand Gravier, who 
divided it into suburban lots and conveyed it to several pur- 
chasers. In 1805, Mr. Livingston, as counsel for Jean Gravier in 
his capacity of heir of Bertrand Gravier, instituted an action 
against the City of New Orleans, to be quieted in the exclusive 
possession of the alluvial ground in front of the suburl) St. ]\Iary 
and commonly called the Batture St. ]\Iarie, and to prevent the 
inhabitants of the city from trespassing thereon. That suit was 
terminated by a judgment recognizing the right of John Gravier, 
and declaring perpetual the injunction he had obtained. But 
the case gave rise to a great deal of excitement. Notwithstanding 
the decision of the highest tribunal of the country in favor of 
Gravier, the inhabitants found themselves deprived of wdiat they 
had considered their rights to procure sand and earth on the 
batture for building, filling lots and other uses. They continued, 
notwithstanding the adverse decision, to assert a right of enjoying 
the batture. 

jNIr. Livingston having afterwards purcliased a portion of the 
property for himself from Gravier, entered upon it and began 
to im]irove it. But his endeavors were thwarted. The populace 
rose against him. They dispersed the laborers engaged on the 
work. They called on Ciovernor Claiborne to use military force. 
The Governor, succeeding in quieting the mob for a season, 



22 



referred the matter to Washington, representing that in his opin- 
ion the Batture St. Marie belonged to the United States as 
Sovereign over the Soil. President Jefferson took up the sub- 
ject. It was discussed in Cabinet. The Attorney General giving 
an opinion in favor of the United States, the INIarshal of the Dis- 
trict of Orleans was instructed by a letter of the Secretary of 
State to remove immediately liy the civil power from the Batture 
St. JNTarie any persons who had taken possession since the 3rd of 
March. Mr. Livingston having applied for and obtained an 
injunction from a Judge of the Superior Court, and served the 
same on the Marshal, the latter disregarded the writ of the court 
and dispossessed him. He then brought an action against the 
Marshal in the Federal Court, to recover damages and to be re- 
instated in possession, and another against Mr. Jefferson in the 
District of his residence. 

The limits which belong to the present occasion forbid that I 
should follow the litigation in the Batture case in detail. Enough 
has been said to state the original position of the parties, Mr. 
Livingston had to contend against the prejudices of the communi- 
ty : against the efforts of the territorial government, and the op- 
pressive action of the President of the United States. His fortune 
was secrificed in the contest, his business lost, and his life repeat- 
edly exposed to imminent danger from popular resentment. He 
complained to the Legislature that the Judges would not listen to 
his arguments and the authorities, but he complained in vain. He 
died a very poor man. Under a compromise authorized by the 
Legislature his family many years after his death, were enabled, 
at the end of a litigation so fierce that it is without parallel in the 
history of the State, to realize a comparatively limited propor- 
tion of the proceeds resulting from sales of the batture property 
where his real interests were very large. Mr. Jeffer- 
son, forced to answer the appeal to the public opinion of 
the country which Mr. Livingston had made in a published 
argument of extraordinary learning and excellence, fell van- 
quished before the righteous demand of his adversary for justice, 
and before the superiority of his presentation of his great cause. 

In the case of Municipality No. 2 vs. Orleans Cotton Press, 18 
Louisiana Reports 165, where the argument of Mr. Livingston 



23 



received critical attention in the discussions of eminent counsel 
— Etienne ^lazureau and Levi Pierce for the IMunicipality ; Isaac 
T. Preston, Christian Roselius, Randell Hunt, George Eustis and 
Pierre Soule for defendants — scholars as well as jurists, qualified 
in every way to take up and carry on a great forensic debate — 
the result was a signal victory in favor of the right of private 
ownership in the Batture by w^ay of accession. In the case cited, 
Judge Bullard, giving the opinion of the majority, said: 
The right to future alluvial formation is a vested right. It 
is inherent in the property itself, and forms an essential attribute 
of it, resulting from the Natural Law, in consequence of the 
local situation of the lands. The learned Judge observed that if 
the Act of 1805, which incorporated and defined the limits of the 
City of New Orleans, had declared in explicit terms, that tracts 
of land fronting the river should no longer be entitled to any 
alluvion which might be formed, but that the same should there- 
after accrue to the benefit of the city, tlte Act ivoidd not only 
have heen unconstitutional, , but one of clear spoliation. Speaking 
of the Faubourg Ste. Marie, Judge Bullard added it had long 
since been settled that the alluvion belonged to the front propri- 
-etors, and had been, subsequently dedicated to public use by con- 
tract between them and the city. 

Solitary among the Judges the venerable senior Judge of the 
Supreme Court who presided over its? deliberations, Judge Mar: 
tin, dissented. I think it appropriate to remind those who have 
been good enough to listen, how Mr. Livingston believed himself 
so much aggrieved by the insensibility or want of power of the 
Judge to be moved or affected by his arguments, that he had tried 
to have him impeached. The two personages were so far apart 
that ^Ir. Livingston appeared with reluctance in the Supreme 
Court. In this condition of affairs, no one will accuse the Judge 
of having thought with partiality of the talents of the advocate. 
I am able to add, on the authority of Doctor Thomas Hunt, 
by whom it was my cherished privilege to be instructed, on 
local as well as on general topics, that Judge Martin on being 
asked, in presence of the conditions stated, ''Who is the first 
lawyer in Louisiana?" answered immediately, "Livingston." 
''Who next?" continued his interrogator, '* Livingston," was 



24 



the Judge's ready reply, "is so easily first, tliat I can name no 
one as second to Jiim!^" 

The bustle of jNIr. Livinj4'>tou's pi'ofessioual practice kept him 
very busy. If he had yielded to retrospection he would have been 
forever lost. lie had entertained great hopes of extricating him- 
self fi-om pecuniary embarrassments by success in his adventure 
in the Batture property. The unlooked-for opposition he met 
with stimulated his exertions, but he could not shorten the tedious 
course of the complicated litigatioii which had developed itself, 
and the War of 1812 between the United States and Great Britain 
found his personal interests still involved in the courts. 

Circumstances and his own patriotic ardor combined to give 
him the lead in going to the assistance of General Jackson. He 
had served, as has been seen, wdth the latter in Congress and 
agreed with him on matters of public policy. Anticipating the 
course of events and tbe aiijiroaching danger to New Orleans, 
Mr. Livingston had l)een some time in correspondence with the 
General at Molule, and furnished him with maps and information 
of service to a militaiy officer. As early as the month of Septem- 
ber, 1814, he presided at a meeting of citizens, at which resolu- 
tions offered by himself were adopted, committing the people to 
risk life and foi-tune in defence of the country. He delivered a 
stirring speech at the meeting, and a committee having been 
appointed to co-operate with the civil and military authorities in 
suggesting means of defence in calling forth the energies of the 
country, to repel invasion and to preserve domestic tranquility, 
he was made chairman. 

General Jackson, arriving in New Orleans December 2nd, he 
was among the first to welcome him. He translated the speech in 
rpply made by Jackson, so that instead of being lost, it reached 
the ears of those who could not, understand English in the inspir- 
ing words of their own language. The listeners, electrified, w^ere 
rallied to the General's support. ]\Ir. Livingston and himself 
were thenceforward inseparable. The former became the Gen- 
eral's confidential adviser, his military secretary, his spokesman 
and interpreter.* He wrote an eloquent proclamation for the 
General, which was published December 15th, and a clear neces- 
sity being found to exist for the declaration of martial law, it 



* Irving 's Washington. 



25 



was, with Livingston's advice, resorted to. December 23rd, he re- 
I)aired on board the Caroline and explained to Commodore Pat- 
terson Jackson's plan of battle. In the night attack, which fol- | 
loM'ed, he and his brother-in-law, Major D'Avezac were thanked 
in general orders for calm and deliberate courage. D 'Avezac was 
a wit and a scholar, and a student of rare acquirements in the de- ^ 
partment of history. I have it on the relation of Christian Rose- i 
lius, who studied law in his office, that he was a more eloquent 
criminal lawyer than Pierre Soule. Lewis Livingston, then a 
boy-captain on the General's staff, shared these honors with 
his father and uncle. The service was dangerous, but glorious. 
When Jackson returned in triumph from his great victory over 
the British, of January 8, 1815, ]\Ir. Livingston, by his direction, 
wrote the General Orders which were read at the head of each 
corps composing the army, and which announced in words glow- 
ing with love of country, the signal success which, by Heaven's 
favor, had crowned the American arms. 

Februar}^ 4th, in conjunction with Captain White and R. D. 
Shepherd, Esq., he was despatched to meet Admiral Cochrane and 
General Lambert, to effect the exchange of prisoners. He was 
present at the surrender of Fort Bowyer, on the 12th. On the 
13th, official information was received of the signing of the 
treaty of Ghent. He returned to New Orleans January 10th. 
Confirmation of the execution of the treaty was received by 
General Jackson March 15th, ensuing. The City of New Orleans 
had been kept under martial law during the twenty-two days 
which elapsed between the return just stated of Mr. Livingston, 
and the arrival of the official news of the treaty. Judge Hall, U. S. 
District Judge, having issued a writ of habeas corpus for the 
protection of IMr. Louallier, who had been arrested by order of 
General Jackson for the publication of a communication to a city 
paper, adversely criticising the General's course, the latter had 
arrested the Judge himself, and banished him. He now resumed 
his seat on the bench, and under Mr. Livingston 's advice, General 
Jackson appeared and submitted himself to the authority of the 
Court and was fined. Hall was an upright Judge, and a stranger 
to fear, with whom personal considerations had no weight. 

At the close of the campaign, before he left New Orleans, Gen- 



26 

eral Jackson presented IMr. Living-ston with is miniature painted 
on ivory, as a mark of the sense he entertained of his public 
service, and as a token of private friendsliip -and esteem. The 
picture is now at Montgomery Phice, the country seat on the Hud- 
son, which Mr. Livingston inherited from his sister, Mrs. Mont- 
gomery. He h)oked deep into the future, and pressed upon the 
attention of Andrew Jackson its great opportunities. "General," 
said Mr. Livingston, addressing him, "you must be President of 
the United States. You are the Man ! ' ' 

In 1820, Mv. Livingston became a meml)er of the Legislature 
of Louisiana, and was made Chairman of the Committee of Ways 
and Means, in the House of Representatives. Joined with Louis 
Moreau Lislet, and Pierre Derbigny, he rendered fresh service to 
the jui-isprudence of the State, in the preparation of the Civil 
Code of 1825. His part of the work was largely on the subject 
of Conventional Obligations. It has been truly said of Judge 
]\Iartin, that he possessed a legal mind of the first order. He had, 
according to the testimony, studied Pothier on Oliligations until it 
seemed to have become i)art of the texture of his brain. He pub- 
lished a translation of this greatest of law loooks. ]\Ir. Livingston 
resorted to the same profound treatise, and thus enriched with the 
labors of Pothier the most ditflcult and scientific portion of the 
Civil Code. If he had done no iiioi'e for legal science, he would 
have realized the ambition of Sir AVilliam Jones, who declared, as 
the result of his own marvelous erudition, that he would consider 
himself as having, to a certain extent, discharged the de))t which 
every man owes to his profession, if his fondness for jurispru- 
dence should never produce any greater l)enefit to his countrymen 
tlian aii introduction to the writings of Pothier. 

INIr. Livingston now entered ui)on the great work of his life, the 
preparation of his book on Criminal Jurisprudence. Appointed 
in 1821, to prepare a C'ode of Criminal Law, he made an elaborate 
rej)ort at the next session of the Legislature. The report was at 
once adopted, and he was urged to prosecute the work. He pro- 
ceeded under this authority, and two years later was ready to 
sul)mit the complete result of his arduous labors. The project 
had filled his thoughts for many years. He first conceived it 
upon the perusal of the works of Jer-emy Bentham. He had been 



27 



deeply impressed witli the defects in our system of penal law, but 
the study of Bentham's works gave method to his ideas, and first 
brought him to consider legislation as a science, governed by cer- 
tain principles applicable to all branches, instead of an occasional 
exercise of its powers, called forth by particular occasions, with- 
out relation to or connection with each other. He had given a 
final revision to his work, and an engrossed copy for the printer 
had been made, when he retired for the night for rest, but was 
awakened by the cry of fire. INIrs. Livingston was first to ascer- 
tain tlie bad news, and to return with it to him. A spark from 
the study lamp on the table, where he had been writing, had set 
fire to his papers and consumed them. "Livingston!" exclaimed 
his devoted wife, "you are a ruined man! Your code has been 
destroyed by fire!" "Never mind, my dear." was the readj^ an- 
swer of this most amiable of men, "it shall rise like the Phoenix 
from its ashes ! ' ' The next morning he sat down to the heavy 
task of re-writing the code. He was now an old man, being sixty 
years of age, but he worked so effectively, thai he was able to 
supply the demands of the printer as fast as they were mat'e, aid 
in two years more had reproduced the work. 

The aim of it was to bring under one system. Crime. Vagrancy, 
^lendicity, and all forms of pauperism. It provided, first, a 
House of Detention for misdemeanants and for witnesses; sec- 
ond, a penitentiary for criminals above eighteen years who have 
been convicted of crime ; third, a House of Refuge and Industry 
for graduates of the penitentiary who were willing to work, but 
compulsory work for able-bodied beggars and vagrants, including 
prostitutes ; fourth, a school of reform for persons under eighteen 
who were to be taught some mechanic art. 

The work was divided into a Code of Procedure, a Co^le .";r Evi- 
dence, a Code of Reform and Prison Discipline. 

Capital punishment was to be abolished. Imprisonment for life, 
in a solitary cell, was substituted for it. Self-examination was 
invoked for discipline. Labor was regarded as a privilege and not 
a punishment. Flogging in the penitentiary was prohibited as too 
degrading, and was to be kept within strict limits in the School of 
Reform, with the hope of dispensing with it even there. Criminals 
convicted of a penitentiary offense were to suffer solitary confine- 



28 



meiit. Their lot, generally speaking, where they craved employ- 
ment, was to be improved— first, by better diet ; second, by partial 
relief from solitude, and, through the instrumentality of educa- 
tion, by the visits and lessons of a teacher ; third, by permission 
to read books of instruction ; fourth, by the privilege of receiving 
friends at stated periods; after the convicts had proved desire to 
reform, by allowing them the privilege of laboring in society; and 
finally by a certificate of good conduct, industry and skill in the 
trade practised in prison. 

Mr. Livingston had a free, enlightened and progressive mind. 
His heart was a temple of benevolence. He was at least 
the time of a generation in advance of teachers and 
reformers in this country on the subjects treated by him. With 
him the great object of penal legislation was the prevention of 
crime. A convict was a man, and some good might proceed even 
from a convict. Crime was pronounced to be the effect princi- 
pally of intemperance, idleness, ignorance, vicious associations, 
irreligion and poverty, but not of any defective organization. 
The laws which permit the continual and unrestrained exercise of 
these causes, are themselves the source of those excesses which 
legislators, to cover their own inattention or indolence or ignor- 
ance, impiously a^crilie to the Supreme being. God, he main- 
tained, has not created man incapable of receiving impressions of 
good. Himself of a tender and loving disposition, he shrank with 
horror from the infliction of merciless and brutal punishments. 
He proposed to abolish all constructive offenses and all dis- 
tinctions between strict and liberal construction of statutes. He 
forbid every departure from the plain letter of the written law, 
and on the trial of a criminal charged under an ambiguous act, 
he required the court to acquit the accused, and report the case 
to the Legislature. He advocated the removal of obstacles to 
the investigation of truth. At that distant day, he was already in 
favor of admitting the parties to a suit to testify, and was for 
reducing the recourse to privileges, by which the exclusion of 
testimony would be accomplished. 

The report which preceded his work and the separate essays in 
which the different Codes w^ere presented, attracted wide-spread 
attention. His reputation "grew and mounted" with the publi- 



29 



cation of them. He became well known in Enrope. His style 
had been carefully formed upon the best models. It was now- 
seen to be simple and dignified, persuasive and classical. He 
used the principles of justice, good faith and benevolence in the 
natural law, to introduce and support positive regulations de- 
signed to protect society by encouraging the vicious and degraded 
to show themselves capable of improvement. A system thus sus- 
tained, he urged, had never yet been resorted to. It was impossi- 
ble to deny Avith success, that it was at least worth while to try 
an experiment which the lawgiver pressed, with extraordinary 
ability, and with the fervor and eloquence of sincere conviction. 
It was out of the question to treat him as a mere visionary, or to 
misunderstand what his view- really was, because he derived it 
from the great universal law of human nature— that law on which 
Cicero has bestowed his lofty eulogium: Non erit alia lex Homae, 
alia Atlienis, alia nunc, alia postliac; sed et omnes gentes, el onini 
tempore, una lex, et sempitcrna et immortalis, coniinehit. 

The Code was translated into admirable French by Jules 
D'Avezac, President of the first college established in New Or- 
leans, and was in this way made immediately available in France. 
It was also published in German. The French version was edited 
with copious notes by Taillandier, a distinguished counsellor of 
the Court of Cassation, and was laid before the Council of Super- 
intendents of Prison Discipline in the City of Paris. Victor Hugo 
wrote to the author : "You will be remembered among the men of 
this age who have deserved most and best of mankind." Ville- 
main declared that the proposed system of penal law was "a 
work without example from the hands of any one man." The 
Code was also reprinted in England by Doctor Southwood 
Smith. Jeremy Bentham proposed that a measure should be in- 
troduced in Parliament to print the whole work for the use of 
the English Nation. The Westminster Review for January, 1825, 
concluded an article on the London edition, referring to ]\Ir. Liv- 
ingston, the writer said : 

"In England, the eyes of its most enlightened philosophers, 
"of its best statesmen, and of its most devoted philanthropists 
"will be fixed upon him, and in his own country his name will 
"be held in lasting remembrance, venerated and loved. He is 



30 

"one of those extraordinary individnnls whom nature has gifted 
"witli the power, and whom eirenmstances have afforded the 
"opportunity, of shedding true glory and conferring Listing hap- 
"piness on his country, and of identifying his own name with the 
' ' freest and most noble and niost perfect institutions. ' ' 

Maine, Professor of Civil Law at Cambridge, author of a pro- 
found treatise, entitled "Ancient Law," pronounced him "the 
first legal genius of modern times." Harvard College proceeded 
to confer on him the degree of Doctor of Laws. The Emperor of 
Russia and th(> King of Sweden wrote him autograph letters of 
congratulation. Brazil made his Code the basis of her jurispru- 
dence of crimes. The King of the Netherlands sent him a gold 
medal having upon it an inscription in his honor. The (government 
of Guatemala translated one of his Codes, that of Reform and 
PrisonDiscipline,and adopted it word for word. He received from 
Marshall, Kent, Madison and Story expressions of admiration for 
his labors as a criminal jurist and law reformer. Jefferson, him- 
self a reformer of the law, whose past difference with Livingston 
made his praise alt Ihe more valuable, wrote to him to say that his 
work "would certainly arrange his name among the sages of 
antiquity." The Institute of France did him the very rare honor of 
choosing him a foreign associate. When, towards the close of his 
career, he visited Heidelberg and met Professor Mittermaier, an 
enlightened author and advocate of law reform with whom Mr. 
Livingston had corresponded, the Professor folded him in his 
arms. At Geneva, the Count de Sellon showed him a monument 
erected by himself to the inviolability of the life of man, having 
the form of a temple, and on which tAvelve great names were 
inscribed. These included Fenelon, Bacon and Wilberforce. One 
of the inscriptions was as follows : 

A 

LIVINGSTON. 

IL DEMANDA ' 

L 'abolition de la 

peine de mort a 

l'amerique. 

Although, as Kent testifies, Livingston has done more in giving 



.31 



precision, specification, accnracy, and moderation to tlie system 
of crimes and punishment than any other legishitor of his age, 
and his name has descended to posterity with distinguished honor, 
the Legislature of Louisiana faihxl to give its sanction to his 
work. I do not hesitate to sulmiit in tlie presence of the Bar 
Association, that it would have Ijeen far more creditable to the 
State to have adopted it. Perhaps a different result would have 
been reached, if ]Mr. Livingston had remained in Louisiana to 
support his work; but he was unanimously elected in 1822 a 
Representative in Congress, when travel Avas difficult, and his 
duties at Washington detained him a great deal from liis South- 
ern home and constituency. Beginning with the session of 1823 
he was now to serve in the House six years without interruption. 
After the lapse of nearly a quarter of a century he returned to 
Congressional life, at a time just as interesting as that when ho 
retired at the clo«e of his first service of six years in the House 
from the State of New York. 

The period of American history ending with the Battle of New 
Orleans was one of financial depression. It was one marked by 
the establishment of a National Bank. It was the period of Pro- 
tection to American Industry, and that of the development of 
Internal Improvements in the United States. It was also marked 
by the application of the Treating-]\Iaking power, and I)y mem- 
orable debates regarding' the interpretation of this delicate and 
important power: finally, it was the period of the pernicious and 
destructive doctrines of Nullification and Secession and of the 
anti-slavery agitation, and once more a time of public distress.* 

'Mv. Livingston's opinions as a Repulilican, so far froju having 
yielded, had, with time, acquired fresh energy. He was, however, 
far in advance of ]\Iadison. IMonroe, the Randolphs and ]\Iacons, 
and other Republican statesmen regarding the doctrine of Inter- 
nal Improvements, which the Democratic party showed itself so 
slow to adopt. Upon his reappearance in the House of Repre- 
sentatives he made an elaborate speech to maintain the proposi- 
tion that the Government of the United States has the constitu- 
tional right to make such roads and canals as are necessary and 
proper for the transportation of the mail, for giving facility to 

*Benton 's Thirty Years. 



32 

military operations, and to commercial intercourse between the 
States. Jefferson, -vvho greeted with sincere gratulations his 
return to public life, expressing the strongest confidence in his 
powers and purposes, and his cordial esteem for him, did not 
conceal his dissent from the doctrine of the speech. 

In 1826 ]\Ir. Livingston paid his debt to the Government. The 
administration in power was one to which he was in political 
opposition, but it accepted his propositions and received in satis- 
faction of the debt certain property which he had succeeded in 
disembarrassing from litigation. Not long afterwards the Gov- 
ernment realized from the sale of the property in question, some 
$6000 more than the debt, principal and interest, amounted to. 

In January, 1826, he made a speech upon a bill before the 
House to amend the judicial system of the United States by cre- 
ating new circuits, and demanded for Louisiana, for reasons of 
public policy, but especially because of her admission into the 
Union on a footing of equality with the original States, the ben- 
efit of a circuit judge as allowed by the pending act to other 
States. He introduced into the House and succeeded in carrying 
a bill for the erection of light-houses, beacons, buoys and floating 
lights along the track of navigation between New York and New 
Orleans, and secured the erection in the City of New Orleans of 
a federal building. He exhibited deep interest in the construc- 
tion of the great national road, and in the scheme for a ship canal 
across the Isthmus of Panama. 

General Jackson took his seat as Senator from the State of 
Tennessee at the same time that Mr. Livingston re-entered the 
House. He rencAved his cordial intercourse with Jackson. They 
had corresponded with each other for years. He supported him 
for President in the campaign of 1824, where the latter failed, 
and the election getting into the House, ]Mr. Adams was chosen. 
His course was not taken from any dislike to ]\Ir. Adams, for he 
felt none: on the contrary, he had a high opinion of his talents 
and integrity, but from a decided preference for the other candi- 
date, whose qualities he thought better fitted him for the place. 
He claimed that General Jackson in his conduct of the defence 
of New Orleans, had developed the resources of a mind equal to 
any task which the service of his country could require. Energy 



33 



combined with prndenee ; courage to face not only dangers in the 
field, but to incur the responsibility of every measure, however 
unpopular, if necessary for the defence of the country; stern 
integrity : the most disinterested contempt of private emolument ; 
courtesy of manner that won the hearts of all who approached 
him, and that connnanded the admiration even of the enemy, in 
his epistolary intercourse ; and, above all, a respectful submission 
to the laws, even when they were so administered as to impose a 
heavy penalty for acts which the preservation of those laws, in his 
opinion, made necessary. 

To the very great regret of General Jackson, Mr. Livingston, 
after serving three terms in the House of Representatives, was 
defeated in his candidacy at New Orleans for re-election. But 
the Legislature of Louisiana, at its next session, proceeded to 
elect him Senator of the United States, and he began his term 
in the Senate with the inauguration of Jackson, ]\Iarch 4th, 1829, 
as President of the United States. 

The President had from the beginning desired to employ ]\Ir. 
Livingston in the business of the French spoliation claims, then 
in a critical stage with France, but he found himself unalile to 
leave the Senate. He participated in the celel)rated debate on 
Foote's resolutions, in the course of which Daniel Webster deliv- 
ered the most admired address to be found in American Congres- 
sional history. The speech of ]\Ir. Livingston contains, in addi- 
tion to a very carefully prepared and instructive enquiry intc 
the nature of the Government of the United States, many pass- 
ages which glow with love of country, and which give expression 
to the feelings of the speaker as a patriot, in a style of excellence 
deserving of admiration for its purity and beauty. The speech 
denied the existence of Nullification and Secession as constitu- 
tional remedies, and defended the Virginia resolutions of 1798 
against the charge of having approved those political heresies. 
These views of INIr. Livingston conform to the interpretation 
placed upon the resolutions by their illustrious author, Mr. Mad- 
ison. ]\Ir. Livingston voted with true independence to override 
President Jackson's veto of the Maysville Road Bill, and the 
"Washington Turnpike Bill. March 3, 1831, he obtained leave to 
bring in a bill, the object of which was the adaptation of his 



34 



systoni of penal law to the wants of the Federal Government. He 
asked attention to two of its features— the provisions fov defining 
and punishing, by positive hiw, offences against the law of 
nations, and the total abolition of the death penalty. The w^ork 
w^as printed for further consideration, but at the next session Mr. 
Livingston had ceased to be a Senator, and the subject was not 
taken up again. 

On the dissolution of Jackson's first Cabinet he was appointed 
Secretary of State, and having been unanimously confirmed, May i 
24, 1831, entered upon the duties of the office and continued for f 
the period of some two years in the discharge of them. \ 
It (h^volved ui)on him as Secretary of State to prepare the \ 
proclamation of President Jackson of December 10, 1832, on the 
occasion of the adt)i)tion by a convention of the people of South 
Carolina of the ordinance of Nullification. The cpiestion 
of the American system, but especially that of a high protec- 
tive tai-iff, having been ])ut at issue in the Presidential elec- 
tion of 1832, the decision was against the system. South Ca'r- 
olina had held aloof from the election and thrown away her vote 
on citizens who were not candidates. The result of the election, 
instead of quieting !ier apprehensions, as ought to have been the 
case, seemed to inflame them, ar.d on the 24th of November", 1832, 
a fortnight afterwards, she adopted her ordinance of Nullifica- 
tion, the object of which was to nullify certain acts of the Con- 
gress of the United States, purporting to be laws levying duties 
and imports on the importation of foreign connnodities. The 
ordinance placed the State in an attitude of open resist 
ance to the laws of the United States, to take effect on the 1st 
of February ensuing; and if, meanwhile, any attempt should be 
made in any way to enforce the law (being "an Act in alteration 
of the several acts imposing duties on imports, approved on the 
nineteenth day of May. one thousand eight hunch"ed and twenty- 
eight, and also "an Act to alter and amend the several acts im- 
posing duties on imports.'' approved on the fourteenth day of 
July, one thousand eiglit hundred and thirty-two,) the fact of 
such attempt was to terminate the continuance of South Carolina 
in the Union — to absolve her from all connection with the Federal 
Goverinnent, and to establish her as a separate government. 



35 

The proclamation of the Prersident examined the provisions of 
the ordinance of Xnllifieation, and anncnineed his attitnde ag'ainst 
the Nullifiiers. Here, it was pointed ont, is a law of the United 
States, not even pretended to be nnconstitiitional, repealed by 
the authority of a small majority of the voters of a single State. 
Here is a provision of the Constitution Avhich is solemnly abro- 
gated by the same authortiy. The ordinance grounds on such 
reasonings and expositions, the right to annul the laws of which it 
complains, but contains a threat to secede from the Union if any 
attempt is made to enforce them. The right to secede is deduced 
from the nature of the Constitution, which, as asserted, being a 
compact by sovereigns, they who made it having reserved their 
sovereignty, can break it when in their opinion it has been de- 
parted from by other States. 

The proclamation insisted upon the radical error involved in 
such a position. It took the ground that the people of the United 
States formed the Constitution, acting through the State Legisla- 
tures in making the compact, to meet and discuss its provisions, 
and acting in separate conventions when they ratified those pro- 
visions ; but the terms used in its construction show it to be a 
Government in which the people of all the States collectively are 
represented. The Constitution operates directly on the citizen. 
It is intended to be everlasting. It does not contain the flagrant 
absurdity of giving a power to make laws and at the same time 
another to resist them. The C*onstitution forms a Government, not 
a league, and whether it be formed by compact between the States, 
or in any other manner, its character is the same. It is a Govern- 
ment in which all the people are represented, which operates 
directly on the people individually, not upon the States — they 
retain all the power they did not grant. But each State having 
expressly parted with so many powers as to constitute, jointly with 
the other States, a single nation, cannot from that period possess 
any right to secede, because such secession does not break a 
league, but destroys the unity of a nation ; and any injury to 
that unity is not only a bre-ach which would result from the con- 
travention of a compact, but is an offence against the whole 
Union. To say that any State may at pleasure secede from the 
Union is to sav that the United States are not a nation : because 



36 



it would be a solecism to contend that any part of a nation might 
dissolve its connection with the other parts, to their injury or 
ruin, without committing any oflfence. Secession, like any other 
revolutionary act, may be morally justified by the extremity of 
oppression, but to call it a constitutional right is confounding the 
meaning of terms. 

The proclamation pointed out, conceding the laws complained 
of to have been unwisely passed, that they by no means justified a 
recourse to revolution. It dwelt upon the blessings of the Union 
and the glorious part of South Carolina in its formation— the 
dangers which must follow any attempt at dissolution. It ap- 
pealed to the people of South Carolina in the attecting language 
of a father— it invoked the memories of their Revolutionary 
ancestors in order to influence them to desist from the course on 
which they had entered — it called on them as they prized the 
peace of their country, the lives of its best citizens, and their own 
fair fame, to retrac^ their steps— to snatch from the archives of 
their State the disorganizing edict of its convention— to bid its 
members to reassemble, and promulgate the decided expressions 
of the will of the people of South Carolina to remain in the path 
which alone could conduct them to safety, honor and prosperity. 

The President, pending thi? preparation of the proclamation, 
wrote to Mr. Livingston to submit to him a few lines for consider- 
ation. He asked the Secretary of State to give the proclamation 
his best flight of eloquence, to strike to the heart and speak to the 
feelings of his deluded fellow countrymen. He then added : ' ' The 
"Union must be preserved without blood, if this be possible; 
"but it must be preserved at all hazards and at any price." 
Horatio Seymour, who was twice Governor of the State of New 
York, and who received the nomination of the national Demo- 
cratic party for the Presidency in 1868, published towards the 
close of his life an address in which he cited a European publi- 
cist as having declared, at a time when he was ignorant of the 
fact that the Proclamation against the Nullifiers and the Report 
to the Legislature of Louisiana on Criminal Law, in favor of 
abolishing the penalty of death, were written by the same author, 
that they were the productions of finest excellence ever seen by 
him from an American statesman. 



37 



The proclamation of Jackson was received with defiance by 
the nnllifiers. The State of South Carolina adopted measures to 
arm herself. Mr. Calhoun resigned the Vice-Presidency and 
entered the Senate to do battle for Nullification. Henry Clay 
took +he field as the champion of compromise. The President 
called for strong- measures, and the force bill was passed. The 
collection of the revenue was transferred to a ship-of-war, and 
the frigate Natchez, in order to do this duty, dropped anchor in 
Charleston Harbor. ]\Ir. Clay procured simultaneously with the 
passage of the force bill a measure for the reduction of the tariff 
until 1842, when it was to stand at 20 per cent, reduction with a 
large free list. Clay contended that the Force Bill and the Bill 
of Peace should go together for the peace of the country : the 
first to vindicate the authority and supremacy of the Union, the 
second to offer that which, accepted in the proper spirit, would 
supersede employment of force. South Carolina proceeded to 
repeal her Nullification ordinance. The country welcomed the 
bill of Mr. Clay with great favor. It won for him a second time 
the title of Pacificator. 

Senator Benton says that this famous compromise mooted in 
the Senate by Mr. Clay and i\Ir. Calhoun as a problem between 
themselves, belongs to neither, but to John ]M. Clayton, Senator 
from Delaware, under the instrumentality of General Jackson. 
The effort to bring about an understanding between Clay and 
Calhoun on the tariff had failed. In this crisis of our country's 
history Daniel Webster, the great Senator from Massachusetts, 
was opposed to compromise, and came without hesitation to the 
support of the President. General Jackson would admit of no 
further delay. He said he would have no further delay. He 
would execute the laws. This was communicated to Mr. Letcher, 
in order that it should reach Mr. Calhoun. Senator Josiah S. 
Johnson, of Louisiana, went to the room of Mr. Calhoun ^t night 
and informed him that General Jackson was determined to take 
a decided course at once, which was understood to signify an 
arrest and trial for high treason. Mr. Calhoun was evidently 
disturbed. 

A committee having been appointed, it was resolved to pass 
Mr. Clay's bill, provided the Southern Senators, including the 



38 

Tuillifiers, should vote for the amendments to he proposed hy 
Mr. Chiy, ]>nt especially the home valuation feature. But the 
amendments were voted down in committee. Senator Clayton 
then determined to have the same amendments offered in the 
Senate, and notified J\[r. Clay and Mv. Calhoun that unless the 
amendments were adopted, and that by every Southern vote, ... 
every nullifier inclusively, that the hill should be defeated. The,,)' 
reason, as Benton explains, for making the nullification vote a 
si)ie qua non was to cut off the Senator.s who voted for the meas- 
ure from pleading unconstitutionality after they were passed; 
and to make the authors of disturbance and armed resistance 
parties upon the record to the proceedings, which were to pacify 
them. As Senator Clayton was inexorable, after much consulta- 
tion, they agreed to all the amendments, except that revolting one 
of home valuation. At last they offered to support and to pass the 
l)ill, but without Mr. Calhoun's vote. But Mr. Clayton declined. 
One day only was left before final adjournment, and they sur- 
rendered. Mr. Calhoun, as well as the others, voted for the 
amendments and afterwards for the M^hole bill. Their assent was 
in this way given to that protective legi-^lation against which they 
were then raising troops in South Carolina, but Mr. Calhoun had 
saved himself from the peril in which he stood from the inflexible 
purpose of the President. Time, instead of diminishing the' 
stature of Andrew Jackson, has only added to it. In the Presi- 
dential contest of 1828 he had overthrown the high tariff of that 
time. The influence of his victoiy facilitated the modification of 
the tariff. His unconquerable resolution enforced submission to 
the Government of the TTnited States. In action how great he 
was ! 

On ]\Iay 29th, 1833, immediately upon resigning the office of 
Seci-etary of State, in accordance ■\\ith the desire of the President 
that he should undertake the conduct of the claim of the United 
States for indemnity for the French spoliations, Mr. Livingston 
was appointed ]\Iinister to Fi-ance. The President addressed him 
a letter in which he adverted in terms of praise both to his ser- 
vices in the campaiun at New Orleans, as well as to his manage- 
ment of the Department of State. August 14th, 1833, he em- 
barked on the 71:-gun ship Delaware at New York. A salute was 



39 



fired on his coming- on board, and the noble vessel spread her sails 
and stood out to sea.* On September 12th he arrived at Cher- 
bourfj. The claims of the United States, which ]\Ir. Livingston 
Avent abroad to recover, had their origin in the British orders in 
council and the Berlin and Milan decrees of Napoleon. A. D. 
1804 Great Britain declared the French coast under block- 
ade from Ostend to the Seine, and in 1806 the blockade was 
extended from the Elbe to Brest. Napoleon answered by the 
Berlin decree of November 21, 1806, establishing the continental 
system and designed to put a stop to trade between Great Britain 
and the continent of Europe. Thereupon the British orders ic 
council of January 7 and November 11, 1807, were issued, de- 
claring a blockade of all places and ports belonging to France 
and her allies from which the British flag was excluded. Na- 
poleon retaliated by the Milan decree, declaring every vessel 
sailing from England or her colonies, or paying taxes to her or 
submitting to search by England, should be lawful price. These 
decrees were the instruments by which the commerce of neutrals 
and especially the maritime commerce of the United States wa."? 
destroyed. 

By the treaty of July 4, 1831, negotiated by i\Ir. Rives with 
Louis Philip, the indebtedness of France to the United States 
had heeu fixed at 25,000,000 francs, payable, with interest, in six 
yearly installments. This action required the ass^ent of the 
Ghandier of Deputies for the appropriation. The Secretary of 
the Treasury, Mr. Mclmne, drew a bill for the first installment, 
the bank negotiating the lull transferred it to a third person avIio 
])resented it, and the bill having been declined, on the ground 
that there was no appropriation to meet it, was protested and 
returned. This was the immediate occasion for the ap])ointment 
of ^Ir. Livingston. He urged at once a special convocation 
of the Chambers in order to pass the legislation required, 
but the King showed reluctance to resort to such an 
expedient, and delayed action to find a more favorable 
opportunity. At the same time friendly representations 
were conveyed to Mr. Livingston, who was assured thai 
the necessary measure would be presented at the ap- 



* Journal of E. Livingston. 



40 

proachiiig refjnlar session and Avonlcl doubtless be saccessful 
The ministry had not ventured to ask the Chandler of Deputies 
for an appropriation, up to the time of the dishonor of the draft 
of Mr. McLane. An application was made a few weeks after that 
event, but it c:ot no further than a reference to a committee. At 
a later time in the same year, another bill was introduced with a 
like result. It was not until six months after Mr. Livingston's 
arrival that tinal action was had, and then, unhappily, the 
Chamber refused by a majority of eight to make the appropria- 
tion. The King dispatched a coverette with instructions to his 
Minister at Washington that the new Chamber should be called 
together soon after the election; that the projct dc loi should be 
laid before them : that all constitutional means should be exerted 
to carry the appropriation, and that the result would be made 
known early enough to enable the President to communicate it to 
Congress at its annual session.* 

The King, however, did not submit the matter to the new 
Chamber as he had suggested. The President in his annual 
message in 1S84 made a recital of the whole business, and Mr. 
Livingston having reported a confidential intimation he had 
received from the King of France, that an earnest passage in the 
message might secure payment, the President actually proceeded 
to reconniiend reprisals.* The French exclaimed against this as a 
threat which made it impossible for France to pay without dis- 
honor, and it became necessary to do something to keep open 
friendly negotiations. This was accomplished by reference to the 
committee on foreign relations in the Senate, of which Mr. Clay 
was chairman. He insisted that while the President and the whole 
people of the United States stood together and the indemnity was 
due, it behooved our Government not to anticipate breach by 
France of her solemn engagements and to treat her with confi- 
dence. It was unanimously resolved in consequence, by the Sen- 
ate, January 14, 1835, that any legislation at that time was inex- 
pedient. The Government of England intervened to tender its 
offices, as a mediator, but France retreated from her original 
demand for satisfactory explanations of the President's message 
of 1834, by saying that the President's annual message of 1835 
(which was addressed to the American Congress only, and in 
* Hunt's Life of Livingston, 



41 

^\•hi('ll he said he had never used any nienaee) was a sufficient dis- 
chiinier. The money was paid, and the incident was closed with 
increase to the popularity of Jackson. 

But payment was not made to Edward Livingston. Wheii 
the message of President Jackson reached France it produced 
great excitement. The Comte de Rigny informed Mr. Living- 
ston that His Ma.jesty had considered it due to his own digiuly 
not to have his ]\Iinister any longer in Washington, nnd tliat the 
conniumication was made in order that INIr. Livingston might lake 
those measures which might seem to be natural conso-juenees. and 
that the passports which he might desire were at his dispo-al. 

Mr. Livingrton wrote immediately in reply, that if the note of 
the Comte de Rigny was intended as an intimation of the course 
which, in the opinion of His jNIajesty's Government, he ought co 
pursue, he could take no directions and follow no suggestions but 
tho-e of his own Government, which had sent him there to repre- 
sent it; but if it was intended as a direction that he should quit 
the French territory l:e would comply with it forthwith, leaving 
the respon Ability where it ought to lielong. In fulfilling 
his promi'^e to reply at length to the Comte de Rigny, 
he said it was his pur])Ose to convey to the latter infor- 
mation which seems to have been wanted by His IMajesty's ]M'n- 
i-ter, Avhen on a late occasion he presented a law to the Chamber 
of Deputies. It was proper, therefore, to state, that althougli tlie 
military title of General was gloriously acquired by the present 
head of the American Government, he is not, in official language, 
designated as General Jackson, l)ut as "the President of the 
United States," and that connniniications were to be made to him 
in that character. 

The issue which the correspondence had developed was stated 
by him with admirable temper in the following manner: 

"I have no mission. Sir, to offer any modification of the Presi- 
" dent's communication; and I beg that what I have said may 
"be considered with the reserve that I do not acknowledge any 
"right to demand, or any obligation to give, any explanations of 
"a document of that nature. But the relations which previously 
"existed between the two countries, a desire that no unnecessary 
"misunderstanding should interrupt them, and the tenor of your 
"Excellency's letter (evidently written under excited feeling) 



42 



"all convince nie that it was not incompatible with self-respect, 
"and the dignity of my conntry to enter into the details I have 
"done. The same reasons indnce me to add, that the idea, erro- 
"neonsly entertained, that an injurious menace is contained in 
"the message has prevented your Excellency from giving a 
"proper attention to its language. A cooler examination will 
"show that, although the President was obliged, as I have demon- 
"stratecl, to state to Congress the engagements which had been 
"made, and that in his opinion they had not been complied with, 
"yet, in a comnnniication, not addressed to His Majasty's Gov- 
"ernment, not a disrespectful term is employed, or a phrase that 
"his own sense of j>r(>priety, as well as the regard which one 
' ' nation owes to another, would induce him to disavow. ' ' 

The Chamlxn- of Deputies soon determined to appropriate the 
money, and passed a bill to do so on the 18th of April, but Avitli a 
proviso that the payment should not be made until the French 
Govei-nment should have received satisfactory explanation of the 
terms used by the President in his annual message 
Mr. Livingston's instructions not having provided for such a 
contingency, in dependence on his own judgment he demanded his 
passports, leaving in Paris the Secretary of the Legation, ]\Ir. 
Barton, as charge d'affaires. In doing so, he addressed a commu- 
nication to the Comte de Kigney, which he concluded by observ- 
ing' : 

"If the principle (for which France had contended) is correct 
"every connnunication which the President makes in relation to 
our foreign affairs, either to the Congress or to the public, ought 
"in prudence to be previously submitted to those Ministers, in 
"order to avoid disputes and troublesome and humiliating ex- 
"planations. If the principle be submitted to, neither dignity 
"nor independence is left to the nation. To submit even to a 
"discreet exercise of such a privilege would be troublesome and 
"degrading, and the inevitable abuse of it could not be borne. It 
"must therefore be resisted at the threshold, and its entrance be 
"fcu'bidden into the sanctuary of domestic consultations. But 
"whatever may be the principle of other governments, those of 
"the United States are fixed: the right will never be acknowl- 
" edged, and any attempt to enforce it will be repelled by the 
"undivided energv of the nation." 



43 



He returned to the United States in the frigate Constitution. 
His conduct of the delicate and important business which had 
been entrusted to his direction in France received the cordial 
approval not only of the President and of his administration, but 
of his fellow-citizens throughout the country. Crowds of people 
gretted him on his landing in New York and followed him to his 
dwelling. He held a pul)lic reception the next day, on the request 
of the Common Council, in the Governor's Room at the City 
Hall. A puljlic dinner was given in his honor. 

He withdrew now to ^Montgomery Place, his beautiful country- 
seat on the Hudson. He took delight in nature. Freed from the 
cares of office, he enjoyed the real happiness he had always found 
in home and the domestic relations. AVith gathering years his 
heart warmed more and more to his native country. He made bul 
one address in public after his retirement. He appeared as coun- 
sel for the municipal authorities in the case of the City of Ne^- 
Orleans vs. the United States, 10 Peters 691. He was associated 
with Daniel Webster. On the other side Benjamin F. Butler, 
Att(U'ney Ceneral of the United States, appeared. i\Ir. Butler 
having in the argument cited with great respect ]Mr. Livingston's 
answer to ]Mr. Jefferson in the Batture case, the former took occa- 
sion to observe : 

"The reference to the pamphlet from which the argument has 
'been drawn, the tiattering terms in which the Attorney General 
'has been pleased to speak of it, and the possibility that in look- 
'ing at it the court may recur to other parts than those immedi- 
'ately relating to the question before them, oblige me to ask their 
'indulgence for a single observation, irrelevant it is true to the 
'case, but which I am happy to have an opportunity of making. 
'That pamphlet was written under circumstances in which the 
'author thought and still thinks he had suffered grievous wrongs 
' —wrongs which he still thinks justified the warmth of language 
'in which some parts of his argument are couched, but which his 
'respect for the public and private character of his opponent 
' always obliged him to regret that he had been forced to use. He 
'is happy, however, to say that at a subsequent period the 
'friendly intercourse with which, prior to that breach, he had 
'been honored, was renewed; that the off'ended party forgot the 
'injury, and that the other performed the more difficult task (if 



44 



"the inaxim of a celebrated French author is true) of forgiving 
"the man upon whom he had intlicted it. The court, I hope, will 
"excuse this personal digression; but I could not avoid using this 
"occasion of making known that I have been spared the lasting 
"regret of re fleeting that Jefiei'son had descended to the grave 
"with a feelijig of ill will to me.'' 

His brief visit to AVashington ended, he returned to Montgom 
ery Place where, after a very short illness and with his family and 
fri(Mids around him, he died on ]\Ionday, ]\Iay 23, 1836. 

His remains were laid to rest with tho-e of his kindred in the 
family vault of the Livingstons, constructed after the manner of 
things long since gone by, in the hill-side at Clei'mont on the 
Hudson, formerly the lower manor of that name. Some years ago 
a dear lady who had many reasons to reverence his memory, 
piously removed his dust to the tomb of his wife, Louise Living- 
ston, and of theii- daughter and only child, Mrs. Barton, under- 
neath the ^letlindist Church, in the village of Rhinebeck, Duchess 
Counly, New York, where the land on which the church edifice is 
built was the gift of Janet Livingston, his sister, widow of the 
heroic Montgomery. 

The statue, in bronze, of Roliert R. Livingston has been erected 
by the State of New York in Statuary Hall in the Capitol at 
Washington. The hi^:tory I have given here, imperfect as I 
am conscious it i> (notwithstanding the very free use I 
have made of the materials at my di*-posal). justifies, I trust, 
the suggestion, that when Louisiana comes to contribute to Statu- 
ary Hall the historic figures which fall to the share of the State, it 
will discharge a pi'oud and honorable duty to itself, by erecting, 
where it may be associated forever with that of his brother, a 
statue to Edward Livingston. Representative and Senator in 
Congress, Secretary of State under the Government of the United 
States, Envoy Extraordinary and ^Minister Plenipotentiary to 
France, Scholar and Orator, Patriot and Statesman, Jurist and 
Philosopher, he adorned the annals of his country. Elected as 
an illustrious man, to be member of the Institute of France in 
honor of his labors for the Reform of the Law and of his work on 
Criminal Jurisprudence, he was numbered among the Benefactors 
of Mankind. 



ID. 89^ 



L.ofC. 















-^0 



0^ »'^"- *b 









^<, 

S^"- 




















^. 












0* 



^^- 



1) u O ^ » 0' 






:mi 






'^^ 



.^ 






<^ 






.6^ ^:? . 









^-^ ^ aV "^ - '- . 






A^ 






^ -1^,, '::^^^1^-'' A<-^^ ^-o ^''!^^^^\n'> ' '^^^.S'^'^^^^' J^" 










'^. 



.h 



0' 



V' 









l\^' 



.^^ . . . 



••J"„ -'^• 






* 'S & ■! - ^ - "lit! iv.,*' ■» jl. 




-J." 






■ i\\ 



'^'5:^ 



5^ ' ' 



,-,x 



•*bv"^ r^v. 



"-^c 



A '=L, 






< 









m 












'o V 



.^^^ "^^^ '■«" A° <^^ 



0' 
^"^ .. -/- ""' ^ 



^ f«\ "^Z /^^^^ %/ :^«*: %/ ;; 






, ".^ »< 3 ^ <S» fl'v 



^.^ ^^v^^ 




,#^ .'.^ v\ 



sv., ^V 0',;^^^ 



.. ,.:w; /% ^:Ji^^ ^^% '-^s /\.l, 





^ ' ^ % 

.T' DOBBS BROS. \V • .\^*^ 

N LiailAMT BINDINO kj* ^ >^V V'i. 

MAR 81' A <. 

; ST. AUGUSTINE j-J> ».j:*$?i^^, *t^ 
4i; ^^^32084 





